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USERRA Reemployment Rights Stressed by Court of Appeals


20100722-5194[2].jpgAll U.S. employers must be mindful of their uniformed service members' reemployment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). That's the lesson to be learned from a recent decision by the U.S. Eighth Circuit Court of Appeals.

Let's start with a brief refresher on USERRA itself. USERRA is a federal law that applies to all U.S. employers, and it provides civilian job protections for veterans and military reservists. Its key components are:

  • The prohibition on employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve;
  • The establishment of a cumulative length of time an employee may be absent from work for military duty and still retain reemployment rights;
  • Protections for disabled veterans;
  • Reemployment rights for service members; and
  • The establishment of service members' obligations for providing notice of the need for leave and applying for reemployment.

It is the reemployment aspect of USERRA that was at issue in Mace v. Willis and Kickbox Dakota, LLC.

In this case, Kieshia Mace was a member of the South Dakota National Guard and an employee of Kickbox Dakota. She averaged about 13.6 hours per week at Kickbox Dakota where scheduling was handled via a mobile app and phone calls. She had no guarantee of any number of shifts. Mace gave proper notice under USERRA and took three weeks off work for mandatary Guard training. While she was on leave, she was deleted from the company's mobile scheduling app, and the company hired a new employee. Two days after she returned from her leave, Kickbox Dakota hired another new employee. Upon her return from leave, Kickbox Dakota told Mace she'd been replaced but later offered to reemploy her. Mace took a different job instead.

Mace sued, claiming that Kickbox Dakota violated USERRA by failing to reemploy her following her leave. The U.S. District Court for the District of South Dakota (the Hon. Veronica Duffy, United States Magistrate Judge for the District of South Dakota, presiding) agreed with Mace. Kickbox Dakota appealed to the Eighth Circuit and argued that they complied with USERRA by offering to rehire Mace back for the same position she had before her leave, that is, one where the employer had complete discretion to schedule her or not. The Court rejected this argument, noting that:

The facts clearly indicate that Willis replaced Mace and did not later reemploy her. Willis and his general manager used the app to schedule employees' shifts, so the effect of removing Mace from the app was to remove her from the pool of eligible workers. Willis also hired two additional staff members-one while Mace was gone, and one shortly after she returned-and told Mace (through his manager) that she had been replaced.

The Court then noted that Kickbox Dakota's argument would only succeed if USERRA's reemployment protections do not apply to employees who lack guaranteed shifts. On this point, the Court reasoned that "The Act's implementing regulations make clear that even temporary, probationary, and seasonal employees enjoy USERRA protections." Thus, the Eighth Circuit affirmed the District Court's decision that Kickbox Dakota had violated USERRA by failing to reemploy Mace. Notably, the Eighth Circuit stressed how this result is an important protection for service members and veterans:

Accordingly, Willis and Kickbox Dakota were obligated to promptly reemploy Mace upon her return from mandatory military training. Though this requirement may burden employers like Kickbox Dakota, the Act reflects Congress's determination that, in the main, this burden is justified to ensure that members of the armed forces do not lose their livelihoods because of their service to the nation.

The Court did point out that there are some exceptions that relieve an employer of its obligation to reemploy a service member. These include situations where the emploiyer can prove that the job "was for a brief, nonrecurrent period and there is no reasonable expectation that the employment would have continued indefinitely or for a significant period," as spelled out in the applicable regulations, plus other situations listed in section 4312(d) of USERRA itself. However, none of those exceptions were argued by the employer in this case; therefore, they were not considered by the Eighth Circuit.

The case serves as a reminder that when U.S. employees take USERRA-mandated leave, they have re-employment rights that must be respected. There may be exceptions that apply, so anyone concerned about their rights and responsibilities under USERRA should seek legal counsel for advice on how to comply with the law.

For more information about this or any other employment-law issue, please contact attorney Tom Jacobson, who is an MSBA-certified Labor and Employment Law Specialist.

This article is for general information purposes only and is not legal advice. For legal advice regarding your particular situation, please consult with an attorney.

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